Washington’s political parties are back in federal appeals court, continuing their six-year challenge of the state’s popular voter-approved Top 2 Primary. The Democratic, Republican and Libertarian parties of Washington asked the 9th Circuit Court of Appeals on Tuesday to throw out the system, which allows voters to choose their favorite for each office, without respect to party, with the two favorites advancing to the November General Election ballot. Neither party is guaranteed a November runoff slot, and the Top 2 is not a nominating election, but rather a winnowing contest.
Jeff Even, deputy state solicitor general, representing Secretary of State Sam Reed and the voters, said the oral argument went well, and that he is optimistic that the state will be able to keep the Top 2 system in place. California voters recently adopted the system. The three-judge panel gave no indication when they will rule, but Even said he would expect the state to know by next spring that it can run the big 2012 election system with the Top 2 in place.
The system was approved in a landslide public vote in 2004 after the parties had successfully challenged the state’s longstanding “blanket” primary, which allowed crossover voting, but produced a GOP nominee and a Democratic nominee, with minor parties handled in a separate process.
The system easily survived a constitutional challenge to the U.S. Supreme Court, which handed down a 7-2 ruling back in March of 2008. The state has used the system ever since, with polls showing heavy public support. But the parties continue to argue that the Top 2 system causes voter confusion and thereby violates the parties’ freedom of association.
In January, U.S. District Judge John Coughenour dismissed challenges brought by the parties over the way Washington operates the primary. Secretary of State Sam Reed and Attorney General Rob McKenna called it a major victory for the voters of Washington and expressed hope that the case was resolved at long last. But the parties decided to appeal.
The court did, however, side with the parties on one issue, saying it is unconstitutional for the state to conduct precinct committee officer elections for the parties when the races are on a ballot available to all voters across the political spectrum. The ruling apparently means the state is out of the PCO election business unless the Legislature devises some fallback system.